DENVER — A three-judge panel of the U.S. Tenth Circuit Court of Appeals appeared divided Thursday during oral arguments over Utah’s prohibition on same-sex marriage, although two of the judges expressed skepticism over the constitutionality of the ban.

For the first time since the U.S. Supreme Court’s historic decisions on marriage last year, a federal appeals court heard arguments on same-sex marriage. In this case, Kitchen v. Herbert, the question at hand was the constitutionality of Amendment 3, the same-sex marriage ban approved by Utah voters in 2004.

Over the course of more than an hour, judges asked questions about the appropriate level of scrutiny for review, whether a ruling against the ban would lead to polygamy and the impact of the ban on children raised by same-sex couples. At no time did they signal when they’d render a decision, even though the court agreed to consider the lawsuit on an expedited basis.

The room in the Byron White Courthouse where the arguments took place was packed with observers. Seated near the judges were the plaintiff same-sex couples, who sat with arms around their partners during the proceedings.

Judge Carlos Lucero, a Clinton appointee, appeared most inclined to rule against Utah’s ban on same-sex marriage. Noting the string of recent court decisions against similar bans, the judge expressed concern about children being raised by same-sex couples and wondered why a straight couple would be more likely to get married if gay couples were banned from marriage.

Lucero placed considerable emphasis on U.S. Associate Justice Anthony Kennedy’s decision against the Defense of Marriage Act, saying the “expositive language” of the ruling “disavowed a decision predicated on federalism” allowing states to ban same-sex marriage.

Talking about the stigma faced by children raised by same-sex couples that can’t marry in Utah, Lucero asked, “Wasn’t that precisely the concern that Justice Kennedy expressed in Windsor and to some degree what motivated his decision in the case?”

The judge went so far as to say the situation in which a same-sex couple can marry in Iowa, but not have that union recognized in Utah, is “identical of the situation” created by the Dred Scott case in the 19th century, which held an individual could continue to own slaves even if they moved to a free state.

Judge Jerome Holmes, appointed by President George W. Bush, also seemed critical of the marriage ban. Holmes, who’s black, asked why bans on same-sex marriage shouldn’t be struck down because they affect a certain category of individuals — much like the 1969 Loving v. Virginia decision striking down interracial marriage bans.

“In Loving, it was about race; in this, it’s about gender,” Holmes said, suggesting he was prepared to strike down the same-sex marriage ban under a ruling guided by heightened scrutiny.

Still, Holmes wasn’t completely sold on the idea that the marriage ban should be struck down, saying he doesn’t see how the court could overturn the marriage ban through a rational basis review standard.

Notably, Holmes was one of two judges that denied Utah’s request for a stay on same-sex marriages in Utah after a district court ruled the state’s marriage ban unconstitutional, but before the U.S. Supreme Court stepped in to institute a stay.

Paul Kelly, an appointee of President George H.W. Bush, seemed most inclined to uphold Utah’s ban on same-sex marriage. Several times, he invoked the prerogative of Utah voters to define marriage through the democratic system without being overruled through the judicial process.

At one point, he questioned why the court shouldn’t also require polygamous marriages in Utah if it were to require same-sex marriages, saying, “It seems like it all goes together.”

Representing Utah in court was Gene Schaerr, an attorney who left his job as partner at the prominent law firm of Winston & Strawn to defend Utah’s ban on same-sex marriage.

Schaerr maintained Utah voters have a right to define marriage as one man, one woman through “democratic means,” just as New York decided to legalize same-sex marriage through a similar process.

Among the arguments Schaerr made was that the diversity under opposite-sex marriages is good for children because it exposes them to “gender diversity” in the same way the state has decided to expose them to racial diversity by requiring integration in the public school system.

Invoking the words of prominent same-sex marriage opponent Maggie Gallagher, Schaerr said a boy raised by a father obtains a “deep personal experience of masculinity,” and when that’s absent, studies have shown they don’t fare as well in society.

Under questioning over whether children of same-sex parents would be better off if their parents could marry, Schaerr said the same argument could be made for children being raised in polygamous families. At which point, Lucero retorted there’s plenty of time to talk about polygamy, but the issue at hand is same-sex marriage.

On the evening prior to arguments, Schaerr submitted a request to the court asking judges to ignore citations in an earlier brief to the criticized study of Mark Regnerus, which found that same-sex parents aren’t as fit as opposite-sex parents. That study has been debunked by LGBT advocates and ridiculed in an earlier decision by a federal judge in the Michigan marriage case.

Peggy Tomsic, a lawyer at the Salt Lake City-based firm of Magelby & Greenwood, argued on behalf of the plaintiff same-sex couples seeking to wed or to have their marriages recognized in Utah.

“These laws are not the type of laws that our Constitution will permit because, as the court has said before, the court does not allow the creation of class between its citizens,” Tomsic said in her closing arguments.

The appropriate standard of judicial review was discussed extensively during arguments. Schaerr maintained the right level is the rational basis standard, which would give Utah the greatest chance of success in the case.

Tomsic pressed for a review under heightened scrutiny because the Supreme Court applied a higher degree of rational basis in its decision against DOMA. Still, she maintained the marriage ban would fail under a lower form of rational basis, saying while it is a more “deferential standard, it is not a toothless standard.”

In a give-and-take between Kelly and Tomsic over whether animus was behind Utah’s same-sex marriage ban, Tomsic insisted animus was a factor because Utah’s law does nothing to impact the institution of marriage other than keeping out “same-sex couples who have children or want to procreate.”

Even though the issue before the court is Utah’s law, the decision would have precedent on marriage laws throughout the entire Tenth Circuit, which consists of Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. Of these states, only New Mexico has marriage equality.

The arguments took place exactly one week before scheduled arguments on Oklahoma’s marriage ban on April 17 before the same three-judge panel in the case of Bishop v. Smith. It’s possible the judges will issue a combined decision for both cases.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association.
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The Polygamous marriage argument is a specious one. Like in the case of Loving, same-sex couples are not asking for the right to marry multiple partners just one!

Further, if states have the right to define marriage, then why was the Loving case ruling constitutional? Virginia defined marriage to be between same race couples not different races yet the Supreme Court Struck the law down!

Tying the right to marriage to procreation is also specious. Being able to procreate isn’t a requirement under the law to be married if your partner is opposite sex. The infertile and elderly couples can marry but can’t have children. There is no fertility test required for a marriage license either.

As a lawyer for the defense, you should know that you aren't allowed to just say "studies have shown". YOU have to provide the studies you speak of if you are going to make that claim. Also, I don't understand the logic that Judge Paul Kelly uses when talking about polygamous marriages. For one thing, that is a slippery slope argument that a judge, especially a circuit judge, should not be making. The judge should not be making the case for the defense. It is up to the defense to bring that up and prove somehow that is what will happen. One could see that since we've had gay marriage in this country and in Canada for 10 years that polygamy is not an issue worth raising. Also polygamy is not the issue and even if it could be used to make polygamy legal, that still should not be an issue raised because it is a completely separate issue altogether.